Soft Law and Ombudsman
Not all ombudsmen might know that they use the Soft Law toolbox. This paper aims to show how they do it and that the fluid system of the bottom-up building of norms is appreciated both by public and administration.
What is Soft Law?
The difference between “normal” laws and Soft Law is that the latter is not a product of a legislative body: Soft Law is a bottom up developed standard that through different processes becomes a legal standard, often a result of a negotiation process. The concept “Soft law” originated in international public law and it is nowadays found in many other fields of law. It appeared during treaty negotiations, when negotiating parties (states and NGOs) were looking for the most flexible option that would let them avoid immediate and uncompromising commitment to rules that may desirable today but may not be desirable tomorrow. In the not-yet-binding “Soft-Law-phase” contracting parties work on a basis of good faith, building a common view on future law/standards. It gives a free testing ground, i.e. room to test aspirational goals, it can enable coordinated compliance and it makes it possible to deepen cooperation and exchange before surrendering to some measure of control over legal rules. Typical for Soft Law is the transfer of rules applicable in one field of knowledge to other areas and the so called hardening process: the gradually bigger influence of a not (yet) binding norm because it is quoted more and more and starts to have direct influence on the practice of parties. It gives time to develop an Opinio Iuris; commonly accepted interpretation of treaties . Soft Laws are often referred to as: WHAT: Statements, Conclusions, Principles; HOW: Codes of Conduct (= CoC), Codes of practice, Guidelines, Instructions; WHAT & HOW: Policy objectives, Action plans (Agenda 21), Action programs.
The Dutch Ombudsmen: finding his own set of norms
The ninth chapter of the Dutch General Administrative Law Act (GALA) is about complaint handling (by the administration). Local, regional, provincial and national ombudsmen all work on basis of this law. Article 9:36-2 of GALA states: “If it is the verdict of the Ombudsman that the conduct was improper, he shall state in his report what standard of conduct was violated.”. The legislator refused to predetermine a Code of Proper Conduct: it was for the Ombudsmen to build a set of norms. Analysing the set of Ombudsmen norms developed since 1976 there appears an amazing affiliation with norms in other fields of law. The hypothesis is that this is because all these norms derive from the same source. In short the differences can be explained through the development along different lines: The level of ambition The Ombudsman aims to enhance proper behaviour; that is a considerably higher standard than the written law (which normally limits itself to prescribing the minimum level standards). Terra incognita: The Ombudsman has to give verdicts where no judge...